AKME Literary & Charity Law Library (original) (raw)

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Welcome to the AKME Literary & Charity Law Library

A unique resource for all authors conducting or contemplating litigation against publishers

The Library is divided into seven sections:

1. Publishing law reports, including articles and other resources.

2. Certain cases relating to the loss of reputation, publicity, or a chance.

3. Certain cases and sources relating to charity law and the university presses' tax-exemption, a lawyers' briefing paper re. OUP (USA)'s tax-exemption, and OUP (South Africa)'s tax-exemption cases.

4. Two cases concerning master-servant relationships, invoked in Malcolm v. Oxford 2001/2.

5. Articles on various topics by leading literary lawyer Nicola Solomon.

6. Case and articles concerning authors' royalties and publishers' sheet dealing.

7. Articles concerning the implications of the new print-on-demand technology.

1. PUBLISHING LAW INDEX

The authorities are set out in chronological order with italicized topic summaries.

Planché v. Colburn 1831 Binghams Common Pleas, Volume 8, 1831-32, p. 13 Author contracted to write volume for a periodical series - Publisher abandons series - Author entitled to remuneration without delivering work

Sweet v. Cater, 1841 11 Sim. 572. Piracy - Copyright - Agreement - Construction

Stevens v. Benning, 1854 1 K. & J. 168; 6 De G. M. & G. 223 Agreement between Author and Publisher - Copyright - Injunction

Reade v. Bentley 1, 1857 3 K. & J . 271. Copyright - Agreement - Author and Publisher - Partnership

Reade v. Bentley 2, 1858 4 K. & J . 656. Contract - Author and Publisher - Partnership - "Edition" - Stereotype - "Thousands" - Copyright

Warne v. Routledge 1874 Equity cases L.R. Vol. XVIII 497, 1874 Oral agreement with publisher - Exclusivity not implied - Copyright - Suit to Restrain publication of second edition by licensee fails

Griffith v. Tower Publishing Co. Ltd. 1896 [1897] 1 Ch. 21. Contract - Author and Publisher - Agreement by Limited Company to Publish - Copyright - Debenture-holder's Action against Company - Assignability of Agreement by Receiver

**Abrahams & another v. Reiach 1921**1 K.B. 477 1921 Author-publisher contract - Articles published in magazine, therefore no uncertainty as to text - Discretion of Publisher - Measure of Damages - Reasonable publication

Barrow v. Chappell 1951 No 14 [1976] R.P.C. 355 Oral contract for publication of musical scores in journal - Author's right to be published unedited and with expedition - Breach of contract - Damages inadequate - Specific performance (publication) ordered and damages awarded for delay

Joseph v. National Magazine Co. Ltd.1956 [1959] 1 Ch. 14 Contract to publish article in magazine - Article to be printed under author's name - Refusal of author to allow stylistic and factual alterations by editor - Whether contract repudiated by author - Whether author entitled to specific performance (publication) - Damages awarded for loss of opportunity to enhance reputation

Malcolm v. Oxford University 1990 The Court of Appeal judgment complete, with links to The Chancery Court judgment, The judgments' extracted highlights and The case history. Author-publisher contract - Correspondence and oral commitment sufficient - Formal document anticipated but not executed - Submitted text subject to specified revisions sufficiently certain - Condition "revised text no worse than original" contractual - Editor's phrase "a fair royalty" adequate consideration - Book's print-run, format and price at discretion of publisher - Oxford's public statement - Specific performance (publication) inappropriate - Damages enquiry ordered

Entertainment Law Review on Malcolm v OUP: [1991] 1 ENT.LR preliminary report and [1991] 3 ENT.LR detailed report Publishing: Contract By Telephone by Bernard Nyman.

Publishing contracts by telephone Article by Hugh Jones on Malcolm v OUP in The Bookseller magazine of 5th July 1991

Malcolm v. Oxford University 1991 Chancery Division Assessment of damages - Lost royalties - Fair royalty rates - Published price vs. net receipts calculations - 'Sheet dealing' - Price estimates - Production timetables - Interest - Estimate of lost first five years' sales by comparison with other books - Loss of opportunity to establish or enhance reputation (publicity)

Malcolm v. Oxford 1985-1992: The Case Papers. The court files of evidence, documents, affidavits, statements and courtroom testimony (e.g. of Oxford's six witnesses, Sir Roger Elliott, Ivon Asquith, Richard Charkin, Henry Hardy, Margaret Goodall and Nicola Bion) all indexed, cross-referenced and interlinked for easy navigation.

Authors' Entitlements to Damages A general survey of the subject, forming a second Appendix to The Remedy.

Publishing Law (1996) by Hugh Jones (and later Andrew Benson). Launch by Routledge of important text book analysing the implications of Malcolm v. Oxford (extract).

Steans v. West 1997 West London County Court (Guardian report) Vanity ('subsidy') publishing contract - Poor quality of books produced - Inadequacy of bindings, covers - Books unsaleable - Damages. Also, link to recommended anti-vanity-publishing campaigner.

Pilling v. Reed Consumer Books 1997 Whitehaven County Court Author (poet)-publisher contract - Sparse correspondence - Formal document anticipated but not executed - Contracting editor as witness - Damages (unpaid advance) awarded - Loss of opportunity to establish or enhance reputation

Myers v. Macmillan Press Ltd.1998 Queen's Bench Division (with synopsis of story in form of the third Appendix to The Remedy. Author-publisher contract - Correspondence and oral commitment sufficient - Author's notification of defendants of agreement with other publisher for partially overlapping work outside defendant's market does not constitute repudiation - Oral notification sufficient - Damages calculated by estimation either of lost royalties or of work done - Estimate of lost royalties (by comparison with previous publications) more realistic method - Lost sales estimated over 13 years, projected into future

Kent and others v. Valeforce Associates 1999 Wandsworth County Court Vanity ('subsidy') publishing contract - poor quality of books produced - failure of publisher to market books - absence of publisher's good faith - misrepresentations in publisher's prospectus (rf. Misrepresentation Act, 1967) Also, link to recommended anti-vanity-publishing campaigner.

Malcolm v. Oxford 2001/2. Explanation of proceedings and index of pleadings concerning Alan Ryan's breach of the 1992 settlement agreement that Oxford University's servants and agents would not (further) publicly denigrate Malcolm or his book Making Names. Ryan, Warden of New College, held to be "an independent contractor" with respect to the university.

Sadler v. George Reynolds 2005 Oral contract - ghost-writer to co-write autobiography - breach of contract - measure of damages.

2. LOSS OF REPUTATION, PUBLICITY, A CHANCE

Chaplin v. Hicks 1911 C A 2 K. B. 786 Beauty Contestant denied chance to compete - Breach of Contract - Measure of Damages - Remoteness - Inassessability

Marbé v. George Edwardes (Daly's Theatre) Ltd. & anr. 1927 C.A. 1 K. B. 269 Contract - Engagement of Actress - Breach - Damages - Loss of Publicity - Libel - Qualified Privilege - Plaintiff fails to prove Malice - Discretion of Judge - Election of Defendant to call Evidence

Withers v. General Theatre Corporation Ltd. 1933 C.A. 2 K. B. 536 Contract - Theatrical Engagement - Construction - Breach - Damages - Loss of Publicity - Option as to Hall at which Actor should appear - Misdirection of Jury

Clayton & Waller v. Oliver 1930 H.L. A.C. 209 Contract - Theatrical Engagement - Construction - Breach - Obligation on Manager to find a Part for Actor to play - Measure of Damages - Loss of publicity.

Tolnay v. Criterion Films 1936 All E. R., Vol 2 1625 Authors of screenplay - Breach of contract - Screen credit promised - Loss of publicity for authors as well as actors - Damages

Ackland v. World Screenplays, 1950 The Times, Feb. 23, 1950 Breach of contract over screen credit - Size of Lettering - Claim for damages

See also the cases above: Barrow - Joseph - Malcolm (assessment) - Pilling - Authors' Damages.

THE WHEEDLERS' WAR the failed tax-exemption applications by CUP & OUP (1944-1950)

Press Release, Explanation, Index

JIG UP FOR DIFFERENT TOTAL ANIMALS?

the granted tax-exemption applications by CUP & OUP (1975-1978) Press Release,Index (updated 3/09)

The Surprising Truth about OUP's 'Charitable Status'. The controversial 5th Appendix to The Remedy, including links to the history of CUP's tax-exemption, to OUP USA, OUP India and OUP South Africa (see below), to the Waldock Report (Oxford University's 1970, pre-exempt investigation of its own Press), and to OUP's recent accounts.

EEC law report Regina v. HM Treasury ex parte: is Cambridge secretly 'going private'?

Brighton College v. Marriott 1925 ICLR: Appeal Cases 1926, A.C. 192 Revenue - Income Tax - Charity - Public School - Profits from School Fees - Profits or Gains from Trade - Income Tax Act, 1918 (8 & 9 Geo. 5, c. 40), s. 37, sub-s. 1 (b), Sch. D.

Royal Choral Society v. Inland Revenue Commissioners [1943] 2 All ER 101 or 25 TC 263 Income Tax - Exemption - Charitable purposes - Income Tax Act 1918 (8 & 9 Geo. V, c. 40), Section 37 (1) (b); Finance Act 1921 (11 & 12 Geo. V, c. 32), Section 30 (1) (c); Finance Act 1927 (17 & 18 Geo. V, c. 10), Section 24.

Tennent Plays Ltd. v. Commissioners of Inland Revenue 1948 C.A. Income tax - Exemption - Charitable purposes - Finance Acts 1921, 1927

Hutchinson & Co. (Publishers), Ltd. v. Turner (H.M. Inspector of Taxes) 1950 Income Tax, Schedule D - Profits of trade - Publications produced for benefit of trade charitable association - Whether life subscriptions to association paid by company on behalf of employees an admissible deduction. [Not much apparent relevance to OUP (though punters struck by the comedy of the "Pie" publications should perhaps take a look at a recent _Sunday Telegraph_ cutting), but one of the few publishing cases in the Charity Law books, and an indication of just how rigorously and harshly commercial publishers (and their employees) are treated by the Inland Revenue Commissioners - A.M.]

Associated Artists Ltd. v. Commissioners of Inland Revenue 1956 1 W.L.R. 752; 100 S.J. 450; [1956] 2 All E.R. 583; 221 L.T. Jo. 312. Income Tax - Exemption - Charitable purposes - Income Tax Act, 1952.

Re Shaw, Public Trustee v. Day [1957] 1 All ER 745. Charities - charitable purposes - educational purposes - reform of alphabet.

Re Hopkins' Will Trusts [1964] 3 All ER 46. Charities - charitable purposes - educational purposes - schools - Bacon-Shakespeare research.

The Incorporated Council of Law Reporting for England and Wales v. Attorney-General and another 1971 C.A. Charity - Benefit to community - Development and administration of judge-made law - Law reports - Preparation and publication of accurate reports of judicial decisions - Use of law reports to enable court to develop and administer the law - Benefit to members of legal profession in their practice - Charge made for law reports - Whether provision of law reports beneficial to community - Whether falling within the spirit and intendment of the preamble to the Statute of Elizabeth.
This was the case most heavily relied upon by CUP (and OUP) in their 1975 application for UK tax-exemption.

**The granting of CUP's UK tax-exemption in 1976**Chapter 15 Charitable status recognised from M. H. Black's Cambridge University Press 1584-1984, published by CUP 1984.

Trading by Charities Inland Revenue booklet, September 1998, complete and unedited and edited vesion.

Charities and Trading Charity Commission booklet CC35, February 1997, complete.

The Charity Commission website, where various materials are downloadable.

OUP's INDIAN TAX LIABILITY

OUP (India) v. Commissioner of Income Tax SOL case 053, 24th January 2001. The recent judgment of the Supreme Court of Appeal in India, by which OUP (India) has at last definitively lost its tax-exemption in that country, relating to claims dating back to 1973. Click for The Indian Court Archive version (contains a number of typographical errors; link takes you out of www.akme) or for the Akme (corrected) version.
Income Tax Act, 1961, Section 10(22) exemption from tax - In order to be eligible to claim exemption from tax under Section 10(22) of the Act the assessee has to establish that it is engaged in some educational activity in India and its existence in this country is not for profit only - High Court rightly held that the assessee, Oxford University Press, was not entitled to the exemption from the tax under Section 10(22) of the Act.

OUP's SOUTH AFRICAN TAX-EXEMPTION

Introduction to the strange saga, linking to:

1994 57 SATC 231 also cited as 1995 (3). Berman J's judgment complete: Whether surplus funds of OUP(SA) subject to income tax in South Africa - University's aim - OUP itself not a legal Persona - Control of OUP(SA) exercised in England - Surplus remitted to University in UK - Held that 'end-user' referred to in s10(1)(f) of the Income Tax Act 58 of 1962 had to be an institution providing at least an element of systematic or formal instruction controlled to some extent by some person or entity in South Africa - Held that the surplus funds of OUP(SA) not exempt from income tax.

SA ITC1262 (1977) 39 SATC 114
Exemption - Meaning of 'educational institutions' as used in s10(1)(f) of the Income Tax Act 58 of 1962 - Limited company promoting student travel not an 'educational institution', therefore liable to tax .

SA ITC1376 (1983) 45 SATC 213
Requisites to fall within exempting provisions of s10(1)(f) - Society devoted income to subsidising educational institution in foreign country - society exercised control over institution without participating in administration thereof - Society held exempt from tax

1995 58 SATC 45 also cited as [1996] (3) 1 All SA 257 (A) OUP(SA)'s Appeal Court judgment, in which Berman J's judgment in 1994 57 SATC 231 (above) is set aside (includes Corbett CJ's Who's Who entry).

OUP's U.S. TAX-EXEMPTION.

Introduction. Explanation and analysis of OUP's all-important American tax privilege, about which a formal complaint is pending (includes link to facsimiles and transcriptions of OUP Inc.'s 1972 and 1997 applications, and a US lawyers' Briefing Paper on the subject.

4. Master-servant/Independent contractor

Ready Mixed Concrete (Southeast) v. Minister of Pensions and National Insurance [1968] 2 Q.B. 497.
Master and Servant - Contract of service - Service of, or for services - Owner-driver - Payment on mileage basis - Provision of exclusive use of vehicle for company's deliveries - Vehicle to be driven by owner - Power to hire competent driver with company's consent - Vehicle and driver to wear company's livery - Company's rules to be complied with - Freedom of owner in performance of obligations - Whether sufficient control to create master and servant relationship - Whether contractual terms inconsistent with contract of service -Relevance of ownership of assets and bearing of, financial risk - Declaration that owner-driver independent contractor - Whether conclusive - Whether "employed person" - Whether independent contractor - National Insurance Act, 1965 (c. 51), ss. 1 (2), 3 (b).
National Insurance - Insurable employment - Owner-driver - Contract to carry company's concrete - Payment on mileage basis - Exclusive use of vehicle for company's deliveries - Vehicle to be driven by owner but power to hire driver with company's consent - Company's rules to be complied with - Whether a "contract of service" - Whether owner-driver independent contractor - Whether "employed person" - National Insurance Act, 1965 (c. 51), ss. 1 (2), 3 (b).
This was the case chiefly relied upon by Oxford University in Malcolm v. Oxford University 2001/2, to argue that Alan Ryan, the Warden of New College, despite sitting on numerous university committees, holding various university posts (click for list), lecturing on university courses, and being remunerated by the university for his university teaching and supervising work, was/is not a "servant or agent" of the university, but an "independent contractor" with respect to it, albeit one without a contract.

Vidyodaya University Council v. Silva [1965] 1 W.L.R. 77.
Ceylon - Master and servant - University teacher - Status - Servant of University - Summary dismissal - No opportunity to be heard in own defence - Certiorari inapplicable - Vidyodaya University and Vidyodaya University Act, No. 45 of 1958, s. 18 (e).
Master and servant - Wrongful dismissal - Certiorari, whether applicable - University teacher - Summary dismissal - Ceylon
Education - University - Teacher - Status - Liability to dismissal - Ceylon
In the appeal before Lord Justice Aldous in Malcolm v.Oxford University 2001/2, I offered this case, but his learned lordship declined to refer to it. - A. M.

5. Articles by Nicola Solomon in The Author magazine.

Articles by leading literary lawyer Nicola Solomon published in The Author. Formerly a deputy district judge and partner of Finers Stephens Innocent, in 2011, following the resignation of Mark Le Fanu, Nicola became the General Secretary, and later the Chief Executive of the Society of Authors. She has kindly given Akme permission to publish the articles, reproduced without any editing or comment. Links: SoA advice articles - Solomon podcast.

See also Not waiving but drowning. Article by Hugh Jones on moral rights in publishing contracts, The Bookseller 16/10/1992 (scan only).

6. Cases and articles concerning authors' royalties and publishers' sheet-dealing.

Wikipedia entries: Royalty payments - Sheet dealing

The Publishers Association Code of Practice 1982, revised 1997 Guidelines for Publishers in their dealings with Authors

Sharpening the clauses article about publishing contracts by literary agent Giles Gordon in The Author of Autumn 1988.

Royalty swindles explained by Harvey McGregor Q.C. Transcription from the assessment hearing in Malcolm v. Oxford, as reprinted in The Remedy. Fair royalty rates - Published price vs. net receipts calculations - 'Sheet dealing' - Price estimates

Blood on the Sheets Essay by Andrew Malcolm, May 1999, on publishers; international sheet dealing.

All is Vanity a publisher's obligation to publish. Essay by Andrew Malcolm, July 1999, on the possibility of successfully suing a publisher for their failure to produce, promote and market books with reasonable care and competence.

Englade & Simpson vs. HarperCollins Report in The Authors Guild Bulletin (USA) of Spring 2003 concerning two authors' 'class action' victory over the multi-national's excessive discounting of books to its foreign affiliates (a practice akin to 'sheet-dealing').

Down with Royalties article by literary agent Giles Gordon in The Author of Winter 2003/4, published posthumously.

7. Articles concerning the implications of print-on-demand technology.

Wikipedia entry: Print on demand

Bookseller correspondence November 1998 - January 1999 about print-on-demand. Letters by Mark Le Fanu (Society of Authors), Richard Charkin (Macmillan), Maureen Duffy (European Writers' Congress).

A Very Short Run Article by Andrew Malcolm published in The Times Literary Supplement, 18th June 1999, envisaging a successful test case brought by a printed-on-demand author to enforce the reversion of his copyright under a pre-PoD contract.

Eternal Life? Article by Michael Holdsworth of CUP in The Author magazine, Spring 2000, claiming that printing-on-demand invalidates authors' rights-reversion clauses.

Random House vs. Rosetta Books (1) U.S. District Court, (Southern New York), July 11, 2001. 01 Civ. 1728 (SHS). Case on ebook publishing and rights, with possible implications for print-on-demand publishing.

2001 list of some of the OUP (Oxford) and CUP (Cambridge) authors and titles then available, and of some of the other publishers involved.

2004 Analysis of long-running patent infringement suit brought by On Demand Machine Corporation against Amazon.com, Ingram Industries and Lightning Source Inc.

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